LawAnswers.com.au - Australia's #1 Legal Community

LawAnswers.com.au is a community of 10,000+ Australians, just like you, helping each other.
Ask a question, respond to a question and better understand the law today!
Join us, it only takes a minute:

NSW Private Car Purchase - Verbal Advertisements - What are My RIghts?

Discussion in 'Australian Consumer Law Forum' started by Neocode, 14 July 2014.

  1. Neocode

    Neocode Member

    Joined:
    14 July 2014
    Messages:
    4
    Likes Received:
    0
    Recently I've bought a used car from a lady in Jerrabomberra. It's a BMW 320i 2009. The car was registered under her company name.

    When I inspected the car, she said the car had been equipped with a CD stacker. I believed her and did not test that. After I bought the car, I tried to load CDs into the CD stacker and could not do it.

    I texted her to ask about that: "Hi, R I don't know how to load CDs into the CD stacker. The manual says the stacker is in the luggage area but I couldn't find it. How did you do it? Thanks."

    She replied to me: "Hey! I never used it, but you feed them into the dash. I think you push 1, load cd. Then push 2, and load CD and so on". I still keep the SMS on my phone as evidence.

    I tried again, but failed to load CDs in, so I called her. On the phone, she once again confirmed that the CD stacker was a standard feature of this BMW. Unfortunately I did not record this conversation.

    Finally, after consulting with a BMW dealer, it turned out that the car did not have a CD stacker. They quoted me $2,500 to install it.

    The lady refused to pay for that. She said she was not liable because she did not advertise it on the website. However, I know that in commercial law, verbal advertising counts. Therefore she has to be responsible for what she told me at the car inspection.

    I brought the case to NCAT, but at the hearing, they dismissed my application because that was a private sale, not a car dealer sale. They told me that I had to lodge it at civil court.

    Now the only proof that I have is the SMS between me and her. I am wondering if the SMS is strong enough to support me. It's highly appreciated if anybody who had the same experience or know about commercial law or Australian Consumer Law could give me some advice. I also want to know what the procedure is and the cost to apply this case to the local civil court. Thank you very much.
     
  2. Owens Lawyers

    Owens Lawyers Well-Known Member

    Joined:
    13 June 2014
    Messages:
    103
    Likes Received:
    58
    You could start a case in the Small Claims Division of the Local Court of NSW. Costs $90 filing fee and $38 service fee (both of which you add to your claim).

    You could use the SMS as evidence that she misrepresented to you the car had a CD stacker.

    The Small Claims Division is a cheap and quick alternative for claims less than $10 000. If she has a lawyer and she wins, you will have to pay costs, but the amount you would pay is relatively low and fixed by legislation.

    The best resource to help you is in the Debt Small Claims section of the LawAssist website (www.lawassist.lawaccess.nsw.gov.au)

    Assign of course you are in NSW, which you must be if you went to NCAT.
     
    Neocode and John R like this.
  3. Neocode

    Neocode Member

    Joined:
    14 July 2014
    Messages:
    4
    Likes Received:
    0
    Thanks a lot for your swift reply. Just add a point that I am residing in the ACT but the seller is in NSW and the place I bought the car is also in NSW. Therefore I suppose I have to bring it to a local NSW court. Is that correct?

    I am wondering to whom I will make a claim against, the company or the lady. The car is registered under her company name, and in the "Application to Transfer the Registration of this Vehicle" form the seller is the company (signed by the lady and her husband). Because the car was the company's asset, I actually bought the car from the company, not from that lady so the party that I will sue is the company, not the lady. Is that right?

    Once again thank you very much.
     
  4. Owens Lawyers

    Owens Lawyers Well-Known Member

    Joined:
    13 June 2014
    Messages:
    103
    Likes Received:
    58
    I would think so. She is probably an agent for the company. Do you know if she is a director or has some other capacity with the company? You could possibly sue them both.

    I'm not sure you'd necessarily have to start a case in NSW. I don't see why a comparable court in the ACT would be considered an inappropriate forum.
     
  5. Neocode

    Neocode Member

    Joined:
    14 July 2014
    Messages:
    4
    Likes Received:
    0
    That's a construction company of hers and her husband. The husband is in charge of construction and the lady is in charge of marketing and admin. Both of them signed the "Application to Transfer the Registration of this Vehicle" form.

    Base on your experience, do you think that the SMS in my phone is a strong evidence to support my claim?

    Thank you very much. Your answers are very helpful and supportive.
     
  6. Owens Lawyers

    Owens Lawyers Well-Known Member

    Joined:
    13 June 2014
    Messages:
    103
    Likes Received:
    58
    Let me put it this way: I think the SMS is very useful as evidence for your claim.
     
    John R and Neocode like this.
  7. Neocode

    Neocode Member

    Joined:
    14 July 2014
    Messages:
    4
    Likes Received:
    0
    Thank you very much Owens Lawyers and wish you all the best.
     

Share This Page

Loading...